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Harmonisation of Member States' legislation on designs

The disparity between the levels of legal protection for designs offered by the laws of the Member States has negative repercussions on the working of the internal market. The current directive is therefore aimed at harmonising national legislation on the subject to ensure the free movement of goods incorporating designs and guaranteeing freedom of competition within the European Union.

ACT

Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs.

SUMMARY

This Directive applies to design * rights registered:

  • at the Member States' central industrial property offices;
  • at the Benelux Office;
  • under international agreements which have effect in a Member State.

Conditions of protection

To qualify for protection, a design has to be new and have an individual character.

The Member States protect designs by registering them and conferring exclusive rights on their designers.

Term of protection

The design is protected for one or more periods of five years, with a maximum duration of 25 years. The protection confers on the holder the exclusive right to use the design and to prevent any third party from using it.

Rights conferred by registration

The registration of a design shall confer on its holder the exclusive right to use it and to prevent any unauthorised third party from using it.

Restriction of rights

The rights conferred by a design right do not extend to:

  • acts done on a private basis and for non-commercial purposes;
  • acts done for experimental purposes;
  • acts of reproduction for illustrative or educational purposes;
  • equipment on board ships and aircraft registered in another country when these temporarily enter the territory of the Member State concerned;
  • importation into the Member State of spare parts and accessories for the purpose of repairing such craft;
  • the execution of repairs on such craft.

Also excluded from protection are:

  • items incorporated into a product which are not visible during "normal" use of this product;
  • the characteristics of a product's appearance which are solely dictated by its technical function;
  • the characteristics of a product's appearance which have to be reproduced in order to allow the product to be mechanically connected to, or placed in or around, or in contact with another product;
  • equipment on board ships and aircraft which temporarily enter the territory of another Member State;
  • spare parts and accessories which are imported into that Member State for the purpose of repairing the aforementioned craft.
  • designs which are contrary to public order or public morality.

Invalidity

A design right can be declared invalid, in certain cases defined in the Directive, even after it has lapsed or been surrendered.

Relationship with other forms of protection

If in a Member State, designs are protected by legal provisions concerning unregistered designs, copyright, trade marks, patents and utility models or any other provision, these provisions still apply side by side with the specific legislation on the protection of designs.

Key terms used in the act
  • Design: means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal
Directive 98/71/EC17.11.199828.10.2001OJ L 289 of 28.10.1998

RELATED ACTS

Proposal for a directive of the European Parliament and of the Council of 14 September 2004 amending Directive 98/71/EC on the legal protection of designs [COM(2004) 582 final - Not published in the Official Journal] [adoption: codécision COD/2004/0203].
This proposal concerns design protection of spare parts intended to restore the appearance of complex products such as motor vehicles. It aims to complete the Internal Market through the process of liberalisation begun and partially achieved by Directive 98/71/EC.

Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs [Official Journal L3 of 5.1.2002].
This Regulation establishes a unified system for obtaining a Community design to which uniform protection is given with uniform effect throughout the internal market. It aims to remove the obstacles and sources of distortion of competition at Community level. It also aims to encourage creativity and innovation by providing reliable and uniform protection throughout the entire territory of the European Union.

 
Last updated: 17.12.2007
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